Opinion
1:06-cv-0776 OWW GSA PC
08-17-2011
PUNAOFO TSUGITO TILEI, Plaintiff, v. T. WAN, et al., Defendants.
ORDER VACATING TRIAL AND
EXTENDING TIME FOR
PLAINTIFF TO RESPOND TO
ORDER TO SHOW CAUSE
THIRTY DAY DEADLINE
JURY TRIAL PREVIOUSLY
SCHEDULED FOR AUGUST 2, 2011 HAS BEEN VACATED
This matter was set for jury trial on Tuesday, August 2, 2011 at 9:00 a.m. in Courtroom 3 before District Judge Oliver W. Wanger. On July 15, 2011, the Court entered an order requiring Plaintiff to file a declaration by July 25, 2011, showing cause why this case should not be dismissed for Plaintiff's failure to prosecute. (Doc. 121.) On July 25, 2011, the Court received a declaration by a non-party to this action, notifying the Court that Plaintiff is suffering from a debilitating medical condition which has caused him to remain bedridden for eight months. The non-party requests that Plaintiff's jury trial be extended and that counsel be appointed.
This action has been pending for more than five years. The Court cannot hold this case in abeyance indefinitely based on Plaintiff's inability to prosecute. A presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir. 2006) (citing Moneymaker v. CoBen (In re Eisen) , 31 F.3d 1447, 1453 (9th Cir. 1994)). Moreover, Plaintiff may not rely on another person who is a non-attorney and a non-party to litigate on Plaintiff's behalf.
Good cause appearing, the jury trial scheduled for August 2, 2011 in this action has been vacated, and Plaintiff shall be granted an extension of time to respond to the Court's order to show cause. Within thirty days, Plaintiff must file a declaration signed under penalty of perjury with Plaintiff's original signature, either (1) notifying the Court that he intends to proceed with this action, or (2) requesting voluntary dismissal of this action. If Plaintiff intends to proceed with this action, he must also inform the Court of his ability to comply with court orders, meet case deadlines, and otherwise prosecute this action, including his ability to prepare for trial.
Accordingly, based on the foregoing, IT IS HEREBY ORDERED
that:
1. The jury trial in this action, scheduled for August 2, 2011 at 9:00 a.m. before District Judge Oliver W. Wanger, has been VACATED;
2. Plaintiff is GRANTED an extension of time in which to respond to the Court's order to show cause of July 15, 2011;
3. Within thirty days of the date of service of this order, Plaintiff shall file a declaration as instructed by this order, either (1) notifying the Court that he intends to proceed with this action, or (2) requesting voluntary dismissal of this action; and
4. Plaintiff's failure to comply with this order may result in the dismissal of this action.
IT IS SO ORDERED.
Oliver W. Wanger
UNITED STATES DISTRICT JUDGE